KATHERINE GARDENHIRE and WALTER GARDENHIRE v. Donald Schubert , in his individual and official capacity as Chief of Police

*The Honorable Algenon L. Marbley, United States District Judge for
the Southern District of Ohio, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0075P (6th Cir.)
File Name: 00a0075p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KATHERINE GARDENHIRE and
W ALTER GARDENHIRE ,
Plaintiffs-Appellees,
v.
DONALD S CHUBERT , in his
individual and official
capacity as Chief of Police,
Defendant-Appellant.
;>

1
No. 98-6434
Appeal from the United States District Court
for the Middle District of Tennessee at Cookeville.
No. 97-00061—Thomas A. Higgins, District Judge.
Argued: August 5, 1999
Decided and Filed: March 2, 2000
Before: BATCHELDER and COLE, Circuit Judges;
MARBLEY, District Judge.*

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2 Gardenhire, et al. v. Schubert No. 98-6434
_________________
COUNSEL
ARGUED: Daniel H. Rader III, MOORE, RADER, CLIFT
& FITZPATRICK, Cookeville, Tennessee, for Appellant.
Lisa B. Harris, HARRIS LAW FIRM, Cookeville, Tennessee,
for Appellees. ON BRIEF: Daniel H. Rader III, Lane
Moore, MOORE, RADER, CLIFT & FITZPATRICK,
Cookeville, Tennessee, for Appellant. Lisa B. Harris, Samuel
J. Harris, HARRIS LAW FIRM, Cookeville, Tennessee, for
Appellees.
MARBLEY, D. J., delivered the opinion of the court, in
which COLE, J., joined. BATCHELDER, J. (pp. 26-30),
delivered a separate opinion concurring in part and dissenting
in part.
_________________
OPINION
_________________
ALGENON L. MARBLEY, District Judge. Plaintiffs-
Appellees Katherine and Walter Gardenhire brought this suit
against the Defendant-Appellant, Algood Police Chief Donald
Schubert, alleging that Chief Schubert violated their civil
rights, in violation of 42 U.S.C. § 1983, by arresting them
without probable cause and refusing to arrest and to prosecute
their neighbor for burglarizing their retail business. Chief
Schubert filed a motion for summary judgment based on
qualified immunity, which the district court denied. This
interlocutory appeal followed, and raises the same questions
presented in the court below. For the following reasons, we
AFFIRM in part and REVERSE in part the judgment of the
district court.
I.
In December of 1996, Katherine Gardenhire owned a retail
clothing store called Uniquely Yours. Located immediately

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30 Gardenhire, et al. v. Schubert No. 98-6434
cause to arrest. Even absent probable cause, qualified
immunity is available if a reasonable police officer could have
believed that his or her conduct was lawful, in light of clearly
established law and the information the searching officers
possessed. Anderson v. Creighton, 483 U.S. 635, 641 (1987).
In 1996, the clearly established law of probable cause in this
circuit was Criss v. City of Kent. The majority spends some
three pages distinguishing this case, but Chief Schubert was
not required to anticipate the majority’s opinion here. Chief
Schubert was entitled to rely on the plain holding of Criss,
and a reasonable and prudent man, rather than a legal
technician, cf. Brinegar v. United States, 338 U.S. 160, 175
(1949), could have read Criss to authorize the arrest, without
further inquiry, of individuals who were in possession of
particular goods that had been explicitly identified as stolen.
Accordingly, I must dissent from this portion of the majority’s
opinion.
No. 98-6434 Gardenhire, et al. v. Schubert 3
adjacent to Ms. Gardenhire’s establishment was a thrift shop
owned by Mary Della Sala. The two businesses shared a
common interior doorway. The bathroom and climate-control
panel for both stores were located in Ms. Della Sala’s shop.
Some time shortly before December 1996, Ms. Gardenhire
and Ms. Della Sala agreed to trade store fronts. On December
31, the two women were in the process of moving their
merchandise; both women had access to the other’s
establishments and each had property in both locations.
On December 31, 1996, Ms. Della Sala telephoned the
Algood Police Department to report a theft of property from
her thrift shop. She claimed that a banjo, fiddle, pink
flamingo dish, television and VCR were among the items
stolen. Algood Police Officer Bill Davis responded to Ms.
Della Sala’s call by going to her store; he subsequently
contacted Chief Schubert, who was also acting detective for
the city. When Chief Schubert arrived on the scene, Officer
Davis told him that Ms. Della Sala had reported certain items
missing from her store, and that some of these items were
visible, through the windows, inside Uniquely Yours.
Chief Schubert, dressed in civilian clothes, and another
officer, in uniform, then went to the Gardenhires’ home and
asked them to come to the police station as part of the
investigation. There is no evidence in the record as to how
the officers phrased this directive. Although Katherine
Gardenhire is the sole owner of Uniquely Yours, the police
also solicited the cooperation of her husband, Walter
Gardenhire. The Gardenhires are an interracial couple:
Katherine is Caucasian, and Walter is African-American.
The Gardenhires drove their own car to the station, where
they met Chief Schubert and Officer Davis. Chief Schubert
explained why the couple had been summoned there and read
them their Miranda rights. The Gardenhires agreed to
cooperate in the investigation and answered all police
questions. During the interview, the couple admitted that they
had, at their home, the flamingo dish Ms. Della Sala reported
stolen. They also told the police that they had a key to the

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4 Gardenhire, et al. v. Schubert No. 98-6434
1The parties have not stated, nor does the record reflect, exactly how
long the Gardenhires were detained at the police station.
Della Sala store. Ms. Gardenhire alleges that she asked to
call her attorney at one point during the questioning, but the
police denied the request. The police asked for permission to
search Uniquely Yours, and Mr. Gardenhire signed a consent
to search form. Ms. Gardenhire claims that throughout this
encounter, Chief Schubert made “condescending glares” at
her and her husband. After spending some hours at the police
station1, the Gardenhires left, unaccompanied, in their own
car, and retrieved the flamingo dish from their home. They
then met the police at their store.
At the store, Mr. Gardenhire opened the door and allowed
Officer Davis and Chief Schubert to enter and recover Ms.
Della Sala’s items. The police found all of the goods
Ms. Della Sala claimed were stolen. At that point, both
officers noted that the placement of these items was oddly
conspicuous. Officer Davis thought it would be “foolish” for
someone to steal merchandise and then display it in the next-
door window in plain view.
While the police were recovering Ms. Della Sala’s items,
Ms. Gardenhire noticed that several pieces of merchandise
from Uniquely Yours were missing. Mr. Gardenhire
discovered that the cash register was gone. The Gardenhires
suspected that Ms. Della Sala had stolen the items and told
Chief Schubert that they had been robbed. The officer refused
to deal with their complaint. Ms. Gardenhire became agitated
and demanded to make a police report. According to Ms.
Gardenhire’s affidavit, Chief Schubert told her to “shut up,”
and ordered her to leave the store and wait in her car. She did
so.
Soon afterwards, Chief Schubert asked the Gardenhires to
follow Officer Davis to the Putnam County Justice Center to
present the facts to Magistrate Martin Wheeler. He advised
the couple that they would be booked on charges of theft,
burglary and criminal trespass, and would have to post bond
No. 98-6434 Gardenhire, et al. v. Schubert 29
fact in the Gardenhires’ possession, according to the majority,
“[f]urther investigation was necessary at that point.” The
majority goes on to speak of a “duty to investigate an alleged
crime before making an arrest,” suggesting that Chief
Schubert was obligated to elicit and consider an exculpatory
explanation from the Gardenhires. In so doing, the
majority—although denying that it is doing so—subtly
promulgates the rule that arresting officers have a duty to
conduct an investigation into the basis of an eyewitness report
before making an arrest that is founded on the report. See
Fuller v. M.G. Jewelry, 950 F.2d 1437, 1453 (9th Cir. 1991)
(Hall, J., concurring).
This holding flies in the face of Criss’s explicit admonition
that “no such duty to investigate can nor should be created.”
Criss, 867 F.2d at 263. And Criss is bottomed on Supreme
Court caselaw. In Baker v. McCollan, the Supreme Court
held that, “Given the requirements that arrest be made only on
probable cause and that one detained be accorded a speedy
trial, we do not think a sheriff executing an arrest warrant is
required by the Constitution to investigate every claim of
innocence . . . .” Baker, 443 U.S. 137, 145-46 (1979).
Although the plaintiff in Baker did not bring a claim under the
Fourth Amendment, this court, in Criss, and others have
applied the Supreme Court’s decision in the context of
probable cause. Criss, 867 F.2d at 263; Pickens v. Hollowell,
59 F.3d 1203, 1207 (11th Cir. 1995). The result is clear: a
duty to investigate is no part of the probable cause
determination. Criss, 867 F.2d at 263; Kelley v. Myler, 149
F.3d 641, 646-47 (11th Cir. 1998) (“We refuse to add this
extra requirement to the probable cause determination . . . .
The inquiry is whether an officer has reasonable grounds on
which to act, not whether it was reasonable to conduct further
investigation.”).
Even if the majority were correct that the information in
Chief Schubert’s possession “was not enough to justify an
arrest,” the Chief would still be entitled to summary judgment
on the basis of qualified immunity. The doctrine of qualified
immunity does not require that there actually be probable

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28 Gardenhire, et al. v. Schubert No. 98-6434
the determination whether probable cause to arrest exists.
A policeman, however, is under no obligation to give any
credence to a suspect’s story nor should a plausible
explanation in any sense require the officer to forego
arrest pending further investigation if the facts as initially
discovered provide probable cause. . . .
To hold otherwise would be to allow every suspect,
guilty or innocent, to avoid arrest simply by claiming “it
wasn’t me.” And if the arresting officer failed to
investigate such claims prior to arrest, the arrestee could
bring a section 1983 suit. . . . [W]e find that no such
duty to investigate can nor should be created.
Criss, 867 F.2d at 263 (citations omitted).
The majority attempts, unconvincingly, to distinguish Criss.
The majority suggests that the items in Criss were of the type
that one must presume are stolen, while those in this case
could be deemed stolen only from Ms. Della Sala’s
accusation. But this is to say that an inference that an officer
might logically draw from the nature of a stolen object is
entitled to greater weight than the testimony of the victim of
the crime—a premise that itself is contrary to established
precedent. Where, as here, a citizen informant is the victim
of the crime in question, her report is entitled to great weight
in the probable cause determination. See, e.g., Adams v.
Williams, 407 U.S. 143, 147 (1972). Indeed, as this court has
recently pointed out, a crime victim’s accusation standing
alone can establish probable cause. Ahlers v. Schebil, 188
F.3d 365, 370 (6th Cir. 1999); see also United States v.
Maryland, 479 F.2d 566, 569 (5th Cir. 1973) (holding that
“information given to law enforcement authorities by the
victim of the crime immediately after its occurrence was
clearly sufficient to supply probable cause for appellant’s
arrest”).
From these shaky ramparts, the majority launches its
principal assault on the holding of Criss. After Chief
Schubert had received the crime victim’s complaint, and after
he had corroborated that the allegedly stolen goods were in
No. 98-6434 Gardenhire, et al. v. Schubert 5
to be released. Ms. Gardenhire’s affidavit describes her
impressions at that point: “We were not given a choice to go
and I understood that if I did not drive myself that I would be
physically forced to go. We were warned not to deviate from
the specified route and that if we did not show up at the
Putnam County Justice Center that a capias would be issued
for our arrest.” The parties stipulate that the police did not
place the Gardenhires in a police car, nor did the officers say
“you are under arrest,” handcuff or physically touch the
couple. The Gardenhires complied with Schubert’s direction
and followed Officer Davis to the Justice Center in their own
car. As Officer Davis led the couple to the Justice Center, he
did not use his police lights or siren.
At the Justice Center, Magistrate Wheeler spoke to the
Gardenhires. After this interview, the magistrate determined
that there was no probable cause to arrest the couple, and
concluded that this was a civil matter. At some point during
the Justice Center episode, Chief Schubert told the couple
they should “just collect up the rest of [their] things and get
out of town.” The Gardenhires were not booked,
fingerprinted or photographed. They were not incarcerated
and were free to leave after the interview with Magistrate
Wheeler.
On June 16, 1997, The Gardenhires brought this suit in the
United States District Court for the Middle District of
Tennessee against Chief Schubert and the Algood Police
Department. Chief Schubert is the only remaining defendant,
and is sued in both his individual and official capacity. The
Gardenhires have brought two claims against Chief Schubert
pursuant to 42 U.S.C. § 1983. First, the Gardenhires allege
that Chief Schubert violated the Fourth Amendment’s
prohibition against unreasonable searches and seizures by
arresting them without probable cause. Second, the
Gardenhires claim Chief Schubert violated the Fourteenth
Amendment’s guarantee of equal protection of the laws by
not pursuing an investigation against Ms. Della Sala, and
arresting the Gardenhires instead. The second claim is
premised on the theory that the officers’ failure to investigate

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6 Gardenhire, et al. v. Schubert No. 98-6434
was motivated by the fact that the Gardenhires are an
interracial couple.
On November 14, 1997 Chief Schubert filed a motion for
summary judgment arguing that he is protected from this suit
by the doctrine of qualified immunity. The district court
denied this motion, holding that Chief Schubert was not
entitled to qualified immunity because a reasonable jury could
find that his actions on December 31, 1996 amounted to an
arrest of the Gardenhires, and that the arrest was made
without probable cause. The district court also held that
selective enforcement of state laws is actionable under the
Equal Protection Clause of the Fourteenth Amendment.
Chief Schubert now brings this interlocutory appeal of the
issues raised in his original motion for summary judgment.
II.
The denial of a summary judgment motion on the issue of
qualified immunity is immediately appealable. See Mitchell
v. Forsyth, 472 U.S. 511 (1985). The issue of qualified
immunity is a question of law to be reviewed de novo by this
Court. See Long v. Norris, 929 F.2d 1111, 1114 (6th Cir.
1991). Summary judgment is only appropriate where the
“pleadings, depositions, answers to interrogatories, and
admissions on file together with the affidavits, if any, show
that there is no genuine issue as to any material fact and that
the moving party is entitled to a judgment as a matter of law.”
Fed. R. Civ. P. 56(c). All facts, as well as all inferences
drawn therefrom, must be viewed in the light most favorable
to the nonmoving party. See Matsushita Elec. Indus. Co., Ltd.
v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
Schubert claims he is entitled to summary judgment based
on the affirmative defense of qualified immunity against the
Gardenhires’ § 1983 claims. Section 1983 provides:
Every person who under color of any statute, ordinance,
regulation, custom, or usage, of any State . . . subjects, or
causes to be subjected, any citizen of the United States or
other person within the jurisdiction thereof to the
No. 98-6434 Gardenhire, et al. v. Schubert 27
Here, the apparent victim of an alleged theft accused the
Gardenhires of the crime, and the objects allegedly stolen
were found in the Gardenhires’ actual or constructive
possession. These objective factors support a reasonable
belief that the Gardenhires had committed the offense of theft;
the fact that before he instructed the Gardenhires to go to the
Justice Center, Chief Schubert declined to conduct further
investigation on the basis that the allegedly stolen objects
were visible through a window, or on the basis that the
Gardenhires protested their innocence, does not vitiate
probable cause. A panel of this court so held in Criss v. City
of Kent, 867 F.2d 259 (6th Cir. 1988), a case whose
precedential grasp the majority engages in considerable
acrobatics to evade.
In Criss, police officers observed through an open window
street signs belonging to the City of Kent. The officers
obtained a search warrant and questioned Criss, who resided
in the apartment. Criss maintained that the signs had been
taken by his roommate. The officers nevertheless arrested
him for receipt of stolen property. A prosecutor later
dismissed the charge, and Criss brought a § 1983 action for
violation of his Fourth Amendment rights.
Despite Criss’s plausible on-the-spot explanation of his
association with the signs, and despite the fact that someone
in receipt of stolen signs would be unlikely to display them to
public view, this court held that the arresting officers had
probable cause for the arrest. The court noted that the signs
were either the property of the City or were remarkable
replicas. Because Criss had either constructive or actual
possession of them, the court concluded, the officers had
reasonable ground for their belief that Criss had received
stolen property. The court went on to make clear that a duty
to investigate is not part of the probable cause inquiry. The
court’s holding in this regard is worth setting out at length:
A suspect’s satisfactory explanation of suspicious
behavior is certainly a factor which law enforcement
officers are entitled to take into consideration in making

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26 Gardenhire, et al. v. Schubert No. 98-6434
1Although I question whether the Gardenhires were ever arrested, I
will not take up the cudgels on that subject here. The important point is
that the police had probable cause to arrest them after the initial interview,
and the totality of the circumstances did not subsequently tip the balance
in favor of the Gardenhires.
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
ALICE M. BATCHELDER, Circuit Judge, concurring in
part and dissenting in part. The majority opinion creates a
new factor in the determination of probable cause: a duty to
investigate. Because this innovation runs counter to the
settled law of this circuit, and because Chief Schubert can
hardly be expected to have anticipated it, I must dissent from
Part II of the majority opinion.
When viewed in the light most favorable to the plaintiffs,
the evidence establishes that from their earliest encounter
with the Gardenhires, the police were in possession of four
facts. First, Mary Della Sala complained that her belongings
had been stolen, and that they were visible through the
windows of the Gardenhires’ shop. Second, the allegedly
stolen items were in fact in the Gardenhires’ shop. Third, the
placement of the items in public view was somewhat
suspicious. Finally, the Gardenhires professed no knowledge
of the theft.
These facts plainly support a finding of probable cause,
regardless of when the Gardenhires were “arrested.”1
Probable cause means “facts and circumstances within the
officer’s knowledge that are sufficient to warrant a prudent
person, or one of reasonable caution, in believing, in the
circumstances shown, that the suspect has committed . . . an
offense. Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). It
is not an exacting standard; probable cause requires only the
probability of criminal activity, not some type of “prima
facie” showing. Illinois v. Gates, 462 U.S. 213, 235 (1983).
No. 98-6434 Gardenhire, et al. v. Schubert 7
deprivation of any rights, privileges, or immunities
secured by the Constitution and laws, shall be liable to
the party injured in an action at law, suit in equity, or
other proper proceeding for redress. . . .
By its terms, § 1983 creates no substantive rights; it merely
provides remedies for deprivations of rights established
elsewhere. See Tuttle v. Oklahoma City, 471 U.S. 808 (1985).
In this case, the Gardenhires allege that Schubert violated
their Fourth Amendment right to be free from unreasonable
searches and seizures as well as their Fourteenth Amendment
right to equal protection of the laws.
The affirmative defense of qualified, or good faith,
immunity shields “government officials performing
discretionary functions . . . from liability for civil damages
insofar as their conduct does not violate ‘clearly established’
statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800,
818 (1982). An official may, however, be held personally
liable for civil damages for unlawful official action if that
action was not objectively reasonable in light of the legal
rules that were “clearly established” at the time it was taken.
See Anderson v. Creighton, 483 U.S. 635, 639 (1987). This
“objective legal reasonableness” standard analyzes claims of
immunity on a fact-specific, case-by-case basis to determine
whether a reasonable official in the defendant’s position could
have believed that his conduct was lawful, judged from the
perspective of the reasonable official on the scene. See
Graham v. Connor, 490 U.S. 386, 396 (1989).
When determining whether a right is "clearly established,"
this Court must look "first to decisions of the Supreme Court,
then to decisions of this Court and other courts within our
circuit, and finally to decisions of other circuits." Daugherty
v. Campbell, 935 F.2d 780, 784 (6th Cir. 1991). "The
contours of the right must be sufficiently clear that a
reasonable official would understand that what he is doing
violates that right." Anderson v. Creighton, 483 U.S. 635,
640 (1987). However, “[t]his not to say that an official action

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8 Gardenhire, et al. v. Schubert No. 98-6434
is protected by qualified immunity unless the very action in
question has previously been held unlawful; but it is to say
that in the light of pre-existing law the unlawfulness must be
apparent." Id. (citations omitted).
Where a defendant moves for summary judgment based on
qualified immunity, the plaintiff must first identify a clearly
established right alleged to have been violated and second,
establish that a reasonable officer in the defendant’s position
should have known that his conduct violated that right. See
Pray v. City of Sandusky, 49 F.3d 1154, 1158 (6th Cir. 1995);
Johnson v. Estate of Laccheo, 935 F.2d 109, 111 (6th Cir.
1991). The ultimate burden of proof is on the plaintiff to
show that the defendant is not entitled to qualified immunity.
See Wegener v. Covington, 933 F.2d 390, 392 (6th Cir. 1991).
The defendant bears the initial burden of coming forward with
facts to suggest that he acted within the scope of his
discretionary authority during the incident in question.
Thereafter, the burden shifts to the plaintiff to establish that
the defendant’s conduct violated a right so clearly established
that any official in his position would have clearly understood
that he was under an affirmative duty to refrain from such
conduct. See Rich v. City of Mayfield Heights, 955 F.2d
1092, 1095 (6th Cir. 1992). This Court has held, however,
that:
summary judgment would not be appropriate if there is
a factual dispute (i.e., a genuine issue of material fact)
involving an issue on which the question of immunity
turns, such that it cannot be determined before trial
whether the defendant did acts that violate clearly
established rights. Summary judgment also should be
denied if the undisputed facts show that the defendant's
conduct did indeed violate clearly established rights. In
either event, the case will then proceed to trial. . . .
Poe v. Haydon, 853 F.2d 418, 425-26 (6th Cir. 1988)
(citations omitted).
In this case, to determine whether Chief Schubert’s actions
violated any clearly established constitutional rights, this
No. 98-6434 Gardenhire, et al. v. Schubert 25
ignore, see Criss, 867 F.2d at 262, -- rather than in the
“citizen making a complaint” category. While Ms. Della
Sala’s store may have been similarly situated to the
Gardenhires geographically, by virtue of the timing of their
respective complaints, she was not otherwise similarly
situated to the Gardenhires on December 31, 1996. There
was no police report implicating Ms. Della Sala of a crime.
Second, the Gardenhires have not presented any evidence
to support their claim that Chief Schubert purposefully
discriminated against them because they are an interracial
couple. While Chief Schubert’s manners may not have
conformed to Emily Post standards, there is no evidence that
he was motivated by racial animus. The Gardenhires’ basic
argument is that the police had no logical reason to prosecute
them rather than Ms. Della Sala, so the arrest must have been
motivated by their interracial marriage. While such reasoning
would be sufficient in establishing a prima facie Title VII
case, the standard for a selective enforcement claim is much
more demanding. The Gardenhires have failed to establish
that Chief Schubert acted with discriminatory purpose, nor
have they presented the “clear evidence” of misbehavior
sufficient to sustain their selective enforcement claim to
overcome the presumption that the state actors have properly
discharged their official duties. In light of the deference given
to the discretionary decisions of law enforcement officers, and
the dearth of evidence to the contrary, the district court’s
decision on this issue is therefore REVERSED, and the
Gardenhires’ Equal Protection claim is DISMISSED.

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24 Gardenhire, et al. v. Schubert No. 98-6434
may find he was arrested and that his arrest, at least, was
based on racial animosity. And, just as a police officer may
not unevenly apply the laws against a citizen because of his
race, neither may he apply the laws unevenly because a citizen
is married to someone of a particular race. See Loving v.
Virginia, 388 U.S. 1, 8 (1967) (holding that state may not
treat interracial marriages differently from other marriages).
There is no question that in 1996, it was clearly established
that police officers could not selectively enforce state laws
based on racial distinctions.
2. Issues of Law and Fact
The Gardenhires argue that the facts, as they have alleged,
support their claim of selective enforcement. Applying the
Anderson test, the couple contends that a reasonable jury
could find, first, that Chief Schubert singled out the
Gardenhires for prosecution by arresting them and not Mary
Della Sala, who was not involved in an interracial
relationship, but was otherwise similarly situated to the
Gardenhires. Second, the Gardenhires argue that a jury could
find that Chief Schubert arrested them with a discriminatory
purpose, based on his “condescending glares” and the “get out
of town” comment. Third, the jury could find that Chief
Schubert’s actions had a discriminatory effect on an
identifiable group: the Gardenhires, an interracial couple,
were arrested, while Ms. Della Sala, who is not involved in an
interracial relationship, was not. The Gardenhires’ argument
stretches the facts beyond reason to fit their chosen legal
theory.
First, the Gardenhires and Ms. Della Sala were not similarly
situated on December 31, 1996. For most of that day, there
was a police report implicating the Gardenhires in a crime;
while they may not have had probable cause to arrest them,
the police were justified in treating them as suspects in a theft.
When the Gardenhires did eventually attempt to make a
police report concerning Ms. Della Sala, they were already
criminal suspects, putting their comments in the “suspect
making an excuse” category -- which police may choose to
No. 98-6434 Gardenhire, et al. v. Schubert 9
Court must decide, first, what the state of the law was on
December 31, 1996, and, second, whether there is a factual
dispute on which the question of immunity turns. See Rich,
955 F.2d at 1095.
A. Jurisdiction
The Court's jurisdiction over interlocutory appeals on a
claim of qualified immunity is limited to considering pure
issues of law. Berryman v. Rieger, 150 F.3d 561, 563 (6th
Cir. 1998) (finding that "[a] defendant who is denied qualified
immunity may file an interlocutory appeal with this Court
only if that appeal involves the abstract or pure legal issue of
whether the facts alleged by the plaintiff constitute a violation
of clearly established law.") (citations omitted). Mixed
questions of fact and law are treated as questions of law.
Williams v. Mehra, 186 F.3d 685, 690 (6th Cir. 1999) (en
banc).
Here, the Court finds that it has jurisdiction to hear the
Defendant's interlocutory appeal on the issue of qualified
immunity, as the question of whether there was probable
cause for an arrest is a mixed question of law and fact.
Painter v. Robertson, 185 F.3d 557, 569 (6th Cir. 1999)
(citing Ornelas v. United States, 517 U.S. 690, 696-98
(1996)). In finding that the determination of probable cause
is a mixed question of law and fact, the Supreme Court in
Ornelas reasoned that:
The principal components of a determination of
reasonable suspicion or probable cause will be the events
which first occurred leading up to the stop or search, and
then the decision whether these historical facts, viewed
from the standpoint of an objectively reasonable police
officer, amount to reasonable suspicion or to probable
cause. The first part of the analysis involves only a
determination of historical facts, but the second is a
mixed question of law and fact: 'The historical facts are
admitted or established, the rule of law is undisputed, and
the issue is whether the facts satisfy the [relevant]
statutory [or constitutional] standard, or to put it another

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10 Gardenhire, et al. v. Schubert No. 98-6434
way, whether the rule of law as applied to the established
facts is or is not violated.'
Ornelas, 517 U.S. at 696-97 (citing Pullman-Standard v.
Swint, 456 U.S. 273, 289 n.19 (1982)).
In making the determination of whether the right was
clearly established in this case, the Court must apply the facts
to determine the legal question of whether there was probable
cause for an arrest. This Court will only rely on the
undisputed facts in making this determination. The
undisputed facts are as follows: when the Gardenhires were
at their residence, Chief Schubert told them that they “needed
to go” to the police station. The Gardenhires, while at the
police station, were read their Miranda rights and questioned.
It is also undisputed that when the Gardenhires were with
Chief Schubert at their store, Chief Schubert told the
Gardenhires that they “needed to go” to the Justice Center;
instructed them that they “needed to follow” a police officer
to the station; and advised them that they would be booked on
criminal charges and released on bond once they reached the
Justice Center.
As for the determination of probable cause, the undisputed
facts before the Court are that Mary Della Sala claimed that
objects from her store were missing and that those objects
were visible in the store-front window of the Gardenhires'
store which was adjacent to Sala's store.
What is in dispute in this case is whether Chief Schubert
arrested the Gardenhires, and if he did arrest them, whether he
had probable cause to do so. Just as in Williams v. Mehra, the
only "'facts' in dispute are the ultimate issues to be decided by
applying the law to the basic facts. . . ." 186 F.3d at 690. The
determination of whether there was probable cause and
whether there was an arrest involves mixed issues of law and
fact, which are treated as an issue of law, and vest this Court
with jurisdiction to hear the present interlocutory appeal. Id.
at 690.
No. 98-6434 Gardenhire, et al. v. Schubert 23
that the plaintiff make at least a prima facie showing that
similarly situated persons outside her category were not
prosecuted.” S temler v. City of Florence, 126 F.3d 856, 873
(6th Cir. 1997). Furthermore, “there is a strong presumption
that the state actors have properly discharged their official
duties, and to overcome that presumption the plaintiff must
present clear evidence to the contrary; the standard is a
demanding one.” Id. (citations omitted). The Gardenhires’
Equal Protection claim is based on the theory that Chief
Schubert selectively enforced Tennessee’s criminal laws by
arresting them on December 31, 1996 and refusing to
investigate Ms. Della Sala.
Appellant argues that the Gardenhires have not identified
a clearly established right which he violated on December 31,
1996, because they have not met their burden of producing a
case showing that they have a constitutional right to have
criminal laws enforced against other citizens. Appellant’s
argument misapprehends the doctrine of selective
enforcement. While it is true that states have no
constitutional duty to protect citizens from violence by private
actors, see DeShaney v. Winnebago County Dept. of Soc.
Serv., 489 U.S. 189, 195 (1989), it is clearly established that
“the State may not, of course, selectively deny its protective
services to certain disfavored minorities without violating the
Equal Protection Clause.” Id. at 197 n.3 (citing Yick Wo v.
Hopkins, 118 U.S. 356 (1886)).
Appellant also raises the argument that because Ms.
Gardenhire is Caucasian and admits to being the sole owner
of Uniquely Yours, neither Mr. nor Ms. Gardenhire can bring
an Equal Protection claim. There are several flaws with this
premise. To begin, this is the first time Appellant has raised
the issue. Appellate courts are free to decline consideration
of arguments made for the first time on appeal. See id. at 195
n.2. This argument also fails on substantive grounds. First,
the Gardenhires’ Equal Protection claim stems not from Chief
Schubert’s failure to protect Ms. Gardenhires’ store, but from
the allegedly wrongful arrest of the couple. There is no
dispute that Mr. Gardenhire is African-American; the jury

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22 Gardenhire, et al. v. Schubert No. 98-6434
this context, the court should dismiss a case, or take other
appropriate action, if the defendant can prove that the
prosecutor or investigator intentionally singled him out for
punishment because of membership in a protected group or
the exercise of a constitutionally protected right.” Id. “In our
criminal justice system, the Government retains broad
discretion as to whom to prosecute.” Wayte v. United States,
470 U.S. 598, 607 (1985). Although such discretion is broad,
“it is not unfettered.” Selectivity in the enforcement of
criminal laws is subject to constitutional constraints. In
particular, the decision to prosecute may not be deliberately
based upon an unjustifiable standard such as race, religion or
other arbitrary classification.” Id. at 608 (citations omitted).
“Selective enforcement can also lead to § 1983 liability if
the plaintiff pleads ‘purposeful discrimination.’” Id.; see also
Oyler v. Boles, 368 U.S. 448, 456 (1962) (selective
enforcement is a federal constitutional violation if “based
upon an unjustifiable standard such as race, religion, or other
arbitrary classification”). Discrimination is “purposeful” if it
is intended to accomplish some “forbidden aim.” See
Futernick, 78 F.3d at 1056. Such “forbidden aims” include
intentional selective enforcement because of race, nationality,
religion, gender or “other arbitrary classification.” Id. at
1056-57.
This Court has established a three-part test for determining
if selective enforcement has occurred:
First, [an official] must single out a person belonging to
an identifiable group, such as those of a particular race or
religion, or a group exercising constitutional rights, for
prosecution even though he has decided not to prosecute
persons not belonging to that group in similar situations.
Second, [the official] must initiate the prosecution with
a discriminatory purpose. Finally, the prosecution must
have a discriminatory effect on the group which the
defendant belongs to.
United States v. Anderson, 923 F.2d 450, 453 (6th Cir. 1991).
With regard to the first element, “it is an absolute requirement
No. 98-6434 Gardenhire, et al. v. Schubert 11
2These "facts" in dispute in the present case reach the ultimate issues
to be decided and are not those factual disputes that would "divest the
court of jurisdiction." See Williams v. Mehra, 186 F.3d 685, 690 (6th Cir.
1999).
B. Fourth Amendment: The Right to be Free from
Unreasonable Seizures
1. State of the Law
The Fourth Amendment guarantees that government
officials may not subject citizens to unreasonable searches or
seizures without proper authorization. An intrusion that lacks
such authorization is presumptively unreasonable, “subject
only to a few specifically established and well-delineated
exceptions.” See Katz v. United States, 389 U.S. 347, 357
(1967). For example, police only need a reasonable suspicion
of criminal activity to conduct a brief investigatory detention.
See Terry v. Ohio, 392 U.S. 1, 30 (1968). The determination
of “reasonableness” in a Terry stop context depends on a
balance between “the need to search [or seize] against the
invasion which the search [or seizure] entails.” Id. at 21.
When a detention rises to the level of a full-fledged arrest,
however, the Fourth Amendment demands that the seizure be
supported by probable cause. See Dunaway v. New York, 442
U.S. 200, 212-14.
There is no question that in 1996 “the law was clearly
established that, absent probable cause to believe that an
offense had been committed, was being committed, or was
about to be committed, officers may not arrest an individual.”
See Dietrich v. Burrows, 167 F.3d 1007, 1012 (6th Cir.
1999)(discussing the state of the law in 1991). Thus, the only
questions as to the Gardenhires’ Fourth Amendment claim are
those of fact: did Chief Schubert “arrest” the Gardenhires on
December 31, 1996? If so, did the arrest lack probable cause?
If a reasonable jury could answer “yes” to both questions, this
case must proceed to trial.2

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12 Gardenhire, et al. v. Schubert No. 98-6434
2. Mixed Question of Law and Fact
a. Whether Officer Schubert “Arrested” the
Gardenhires
To constitute a seizure of the person, just as to constitute an
arrest, there must be either the application of physical force,
however slight, or, where that is absent, submission to an
officer’s “show of authority” to restrain the subject’s liberty.
See California v. Hodari D., 499 U.S. 621, 626-28 (1991). In
this case, it is undisputed that the officers never physically
touched the Gardenhires. Thus, in determining whether
couple was actually arrested, we must focus on whether the
Gardenhires submitted to Officer Schubert’s “show of
authority.” “The test for existence of a ‘show of authority’ is
an objective one: not whether the citizen perceived that he
was being ordered to restrict his movement, but whether the
officer’s words and actions would have conveyed that to a
reasonable person.” Id. at 628. A person has been “seized”
within the meaning of the Fourth Amendment when “in view
of all the circumstances surrounding the incident, a reasonable
person would have believed that he was not free to leave.”
United States v. Mendenhall, 446 U.S. 544, 544 (1980).
Chief Schubert contends that because he never formally
arrested the Gardenhires, the guarantees of the Fourth
Amendment were never implicated. This argument fails. The
Fourth Amendment’s protections are not limited to traditional
arrests: “a clear deprivation of liberty caused by law
enforcement officers without formal words is nonetheless an
arrest.” See Centanni v. Eight Unknown Officers, 15 F.3d
587, 590 (6th Cir. 1994) (citations omitted). The Supreme
Court has explained:
There is no doubt that at some point in the investigative
process, police procedures can qualitatively and
quantitatively be so intrusive with respect to a suspect’s
freedom of movement and privacy interests as to trigger
the full protection of the Fourth and Fourteenth
Amendments. And our view continues to be that the line
is crossed when the police, without probable cause or a
No. 98-6434 Gardenhire, et al. v. Schubert 21
making the determination whether probable cause to arrest
exists.” Criss, 867 F.2d at 262. Here, a reasonable jury could
find that Chief Schubert did not have probable cause, based
on the totality of information he had at the time, to arrest the
Gardenhires.
Furthermore, the jury will have to analyze the probable
cause question in light of when they conclude that the arrest
occurred, because the factors in the probable cause
determination shifted as the day went on. As the police
officers gathered more facts about the alleged crime, the
totality of the circumstances changed. For example, if a jury
finds that the arrest took place when the officers asked the
Gardenhires to go to the police station, the probable cause
determination centers on Ms. Della Sala’s report and the
siting of the “stolen” items in the window. If, however, the
jury finds that the arrest occurred after the police visited
Uniquely Yours with the Gardenhires, they will have to
consider the Gardenhires’ statements at the police station, and
the fact that the officers noticed at their store the suspicious
placement of the supposedly stolen items and heard the
Gardenhires’ allegation that they had been robbed. With such
fluid, fact-specific elements at the heart of this probable cause
inquiry, it is a question properly reserved to the fact-finding
province of a jury. The district court’s finding on this issue
is, therefore, AFFIRMED.
C. Fourteenth Amendment: Selective Enforcement
1. State of the Law
“Sometimes the enforcement of an otherwise valid law can
be a means of violating constitutional rights by invidious
discrimination. To address this problem, courts have
developed the doctrine of selective enforcement.” Futernick
v. Sumpter Township, 78 F.3d 1051, 1056 (6th Cir. 1996).
Selective enforcement claims are judged according to
ordinary Equal Protection standards, which require a
petitioner to show both a discriminatory purpose and a
discriminatory effect. See id. Usually, claims of selective
enforcement arise as a defense in criminal prosecutions. “In

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20 Gardenhire, et al. v. Schubert No. 98-6434
warrant a finding that the Gardenhires had committed an offense or to
establish probable cause. See Beck v. Ohio, 379 U.S. at 91. Therefore,
the Chief is not entitled to summary judgment on the basis of qualified
immunity.
In her Dissent, Judge Batchelder states that the Court has
added a "duty to investigate" as a new factor to be used in
determining probable cause. The Dissent finds that the police
had probable cause irrespective of when the Gardenhires were
arrested. The factors the Dissent puts forward as establishing
probable cause include: that the allegedly stolen items were
visible through the Gardenhires' shop; that the stolen items
were actually located in the Gardenhires' shop, and finally,
that the placement of the allegedly stolen items was
suspicious. Citing Criss v. City of Kent, 867 F.2d 259 (6th
Cir. 1998), the Dissent states that probable cause is not
eliminated by the fact that the Gardenhires claimed they were
innocent.
Contrary to the Dissent's assertion, this Court is not adding
a duty to investigate as a factor for the establishment of
probable cause. This Court recognizes that an officer does
not have to investigate independently every claim of
innocence. See Baker v. McCollan, 443 U.S. at 145-56. But,
this axiom does not suggest that an officer has no duty to
investigate an alleged crime before making an arrest. A
police officer has probable cause only when he discovers
reasonably reliable information that the suspect has
committed a crime. See Beck, 379 U.S. at 91. And, in
obtaining such reliable information, an officer cannot look
only at the evidence of guilt while ignoring all exculpatory
evidence. Rather, the officer must consider the totality of the
circumstances, recognizing both the inculpatory and
exculpatory evidence, before determining if he has probable
cause to make an arrest. See Dietrich, 167 F.3d at 1012.
While it is true that “[a] valid arrest based upon then-existing
probable cause is not vitiated if the suspect is later found
innocent,” “[a] suspect’s satisfactory explanation of
suspicious behavior is certainly a factor which law
enforcement officers are entitled to take into consideration in
No. 98-6434 Gardenhire, et al. v. Schubert 13
warrant, forcibly remove a person from his home or other
place in which he is entitled to be and transport him to
the police station, where he is detained, although briefly,
for investigative purposes. We adhere to the view that
such seizures, at least where not under judicial
supervision, are sufficiently like arrests to invoke the
traditional rule that arrests may constitutionally be made
only on probable cause.
Hayes v. Florida, 470 U.S. 811, 815-16 (1985) (citations
omitted). Thus, the fact that Chief Schubert did not formally
arrest the Gardenhires does not resolve the issue of whether
their detention amounted to an arrest requiring probable
cause.
Instead, the question is whether a reasonable jury could find
that a person in the Gardenhires’ position would have felt free
to leave. We agree with the district court’s analysis in
concluding that a jury could find that a reasonable person in
the Gardenhires’ position would not have felt free to leave.
The undisputed facts the district court considered were that
Chief Schubert: (1) told the Gardenhires at their residence
they “needed to go” to the police station; (2) read them their
Miranda rights at the police station; (3) questioned the
Gardenhires extensively at the police station; (4) told the
Gardenhires later, at the store, that they “needed to go” to the
Justice Center; (5) instructed them that they “needed to
follow” a police officer to the station; and (6) advised the
Gardenhires that they would be booked on criminal charges
and released on bond.
Based on these facts, a jury could find that a reasonable
person in the Gardenhires’ position would have felt that they
were not free to leave. A police officer’s statement that “you
need to go” somewhere carries substantial authoritative
weight. We think very few people could hear such a directive
from a police officer and still think they were free to act
otherwise. Once the police removed the Gardenhires from
their home to the police station, the encounter took on an
arrest-like nature. See Hayes, 470 U.S. at 816 (holding that

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14 Gardenhire, et al. v. Schubert No. 98-6434
the line separating a Terry stop and an arrest is crossed when
police “forcibly remove a person from his home or other place
in which he is entitled to be and transport him to the police
station, where he is detained, although briefly, for
investigative purposes”). The custodial nature of the police
station encounter intensified with the time the Gardenhires
spent there and the fact that Chief Schubert read them their
Miranda rights. See United States v. Obasa, 15 F.3d 603, 608
(6th Cir. 1994) (holding police officer knew that Miranda
rights are required to be given only to individuals who are in
custody, and “[a]lthough giving Miranda warnings to a
detainee may not automatically convert a Terry stop into an
arrest, it is evidence that the nature of the detention has grown
more serious”). The most compelling factor may be Officer
Schubert’s telling the Gardenhires, at their store, that they
were going to be booked and released on bond once they
reached the Justice Center. We do not think a reasonable
person would believe he is free to leave after a police officer
has stated that he must go to a government center to be
“booked” and that he would have to post bond to be released.
In United States v. Obasa, 15 F.3d 603 (6th Cir. 1994),
under facts similar to this case, this Court held that the police
had in fact “arrested” the suspect. In Obasa, a police officer
stopped a man in an airport, searched his clothing, gave him
Miranda warnings and transported him to the police station in
a police cruiser. The Court held that, although the police
never formally arrested the suspect, under these circumstances
the officer had gone beyond a mere Terry stop and had
arrested the man. Except for the suspect’s transportation in a
police cruiser, the facts in Obasa are nearly identical to those
presented in this case. Indeed, the Gardenhires were
transported from their home, rather than an airport,
implicating a higher level of intrusiveness. See Hayes, 470
U.S. at 815-16.
Additionally, the district court only considered the
undisputed facts in making its arrest determination. There are
disputed facts, such as Ms. Gardenhire’s alleged attempt to
call a lawyer, which a jury should hear. The facts we have on
No. 98-6434 Gardenhire, et al. v. Schubert 19
5The Dissent finds that Chief Schubert should be granted qualified
immunity even if the information the Chief had at the time was not
enough to justify an arrest of the Gardenhires. The Dissent reasons that
in 1996, when the Chief arrested the Gardenhires, Criss was the "clearly
established law," and did not require police officers to investigate before
arresting an individual who was in possession of items that were
identified as stolen.
However, following Terry v. Ohio, 392 U.S. at 30, also clearly
established law at the time of the incident, this Court finds that Chief
Schubert only had a reasonable suspicion of criminal activity which
would only justify a brief investigatory detention. Id. Chief Schubert did
not have the requisite “reasonably trustworthy information” sufficient to
Perhaps this investigation would reveal additional evidence of
theft sufficient to establish probable cause. But, standing
alone, the woman’s mere allegation that the car was hers
would not create probable cause that the man stole the
Porsche.
The foregoing hypothetical is almost identical to the facts
in this case. Chief Schubert had the following information
when he began investigating the Gardenhires: that Mary Della
Sala claimed that several items from her store were missing,
and that these items were visible in the store-front windows
of the adjacent store. We believe a reasonable jury could find
that the police officers did not have probable cause to arrest
the Gardenhires on this information alone. Certainly, there
was enough evidence to justify a Terry stop; the police were
authorized to ask the Gardenhires if the items belonged to
them, to inquire as to why the items were in their store, and to
gather information about the relationship between Ms. Della
Sala and Ms. Gardenhire. But, Ms. Della Sala’s mere
allegation that she owned the items in Ms. Gardenhire’s store-
front was not enough to justify an arrest. Further
investigation was necessary at that point. And if the officers
had asked further questions, they would have learned that Ms.
Gardenhire and Ms. Della Sala shared the facilities of both
stores and were in the process of trading store fronts. Such
information would lead a reasonable officer to consider that
something other than a theft – such as misplacement or a
simple misunderstanding – had occurred.5

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18 Gardenhire, et al. v. Schubert No. 98-6434
street signs – a good almost impossible for private citizens to
obtain legally – the police in Criss could have been almost
certain that someone in the house had committed a crime.
Even if the officers had believed the suspect’s statement that
he had not stolen the signs, the suspect still could have been
guilty of other crimes, such as the receipt of stolen property,
or aiding and abetting the theft. Here, if the Gardenhires’
statements were true, it would mean that they were not guilty
of any crime. Moreover, there was evidence in addition to the
Gardenhires’ bare statements, that would lead a reasonable
officer to rethink whether the Gardenhires had committed a
crime. The obvious placement of the supposedly stolen goods
and the common doorway between the shops should have
triggered at least a suspicion that the “theft” was not what it
appeared.
Unlike the street signs in Criss, the items in Uniquely
Yours are not the type that one must presume are stolen.
Guitars, banjos, televisions and VCRs are commonly -- and
legally -- owned by countless people. In this case, all the
police had was the bare allegation by Mary Della Sala that
these items belonged to her. An allegation by one individual
that items in another’s possession actually belong to her is not
enough to create probable cause that a crime has been
committed. Consider the following situation: a woman flags
down a police officer and points out a Porsche being driven
by a young man, which the woman claims is her car and
which has been stolen by the man. Would the officer have
probable cause to arrest the Porsche’s driver at that point?
We think not. The officer would have a reasonable suspicion
of criminal activity justifying a brief investigatory detention
pursuant to Terry v. Ohio, 392 U.S. at 30. But, without more,
the officer would not yet have the requisite “reasonably
trustworthy information” sufficient to warrant a prudent man
in believing that the young man driving the Porsche had
committed or was committing an offense. See Beck v. Ohio,
379 U.S. at 91. Rather, the police officer would have the
right and duty to detain and question the driver for a short
time: to ask if the car was his, research his licence plate, and
request to see his drivers licence, registration and insurance.
No. 98-6434 Gardenhire, et al. v. Schubert 15
the record before us are the mere skeleton of the story, which
must be animated by the details of what happened when the
police officers arrived at the Gardenhires home, spoke with
them at the police station and interacted with them later at the
store. Other relevant points of inquiry include how long the
Gardenhires were detained at the police station, and what
exactly the officers said to the Gardenhires at different points
during the investigation. Because no physical force was
applied, the officers’ words at each location will be essential
in determining whether a reasonable person would have felt
free to leave. And, of course, the jury must decide the extent
to which they believe the Gardenhires’ version of events.
The issue of whether Chief Schubert arrested the Gardenhires,
therefore, is one which must be presented to a jury.
b. Whether Chief Schubert had probable cause to
arrest the Gardenhires
Any arrest, whether formal or de facto, requires probable
cause. See Centanni, 15 F.3d at 602. Thus, if a jury
determines that Chief Schubert did arrest the Gardenhires, the
next inquiry must be whether he had probable cause to do so.
Generally, probable cause exists when the police have
“reasonably trustworthy information . . . sufficient to warrant
a prudent man in believing that the petitioner had committed
or was committing an offense.” Beck v. Ohio, 379 U.S. 89,
91 (1964). “Probable cause determinations involve an
examination of all facts and circumstances within an officer's
knowledge at the time of an arrest.” See Dietrich, 167 F.3d
at 1012. “In general, the existence of probable cause in a
§ 1983 action presents a jury question, unless there is only
one reasonable determination possible.” Pyles v. Raisor, 60
F.3d 1211, 1215 (6th Cir. 1995). Here, viewing the facts in
a light most favorable to the Gardenhires, we must determine
whether a jury could conclude that a reasonable officer could
have believed that the couple had probably committed or were
committing a crime. There is substantial evidence supporting
each party’s position.

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16 Gardenhire, et al. v. Schubert No. 98-6434
3Chief Schubert has never admitted that he believed at the time of his
investigation that the Gardenhires were set up – despite the Gardenhires’
claim to the contrary.
4The Gardenhires argue that because Ms. Gardenhire and Ms. Della
Sala were in the process of trading store-fronts, Chief Schubert had no
probable cause to believe the items found in Uniquely Yours were stolen.
The couple has not, however, provided any evidence demonstrating that
Chief Schubert was at any time made aware of the women’s business
arrangement.
As the Gardenhires point out, there were factors present at
the time of the initial police investigation which may have
made it unreasonable for Chief Schubert to believe that the
Gardenhires had committed any crime. For example, the
placement of the allegedly stolen goods was suspicious. It is
unlikely that one store owner would steal goods from another
and then leave those goods in the window of her own store-
front. In fact, based on where the goods were found, two of
the initial investigating officials believed that the Gardenhires
had been set up: both Officer Davis and Magistrate Wheeler
thought the alleged theft was a set-up. Even Chief Schubert
admits now that the placement of the items suggests that the
Gardenhires had not committed a theft.3 And, the
Gardenhires tried to explain to the officers then that they had
not committed a crime, but had been the victims of one. The
officers did not bother to investigate the Gardenhires’ claim,
which, in hindsight, appears to have been a reasonable one.4
On the other hand, there was substantial inculpatory
evidence against the Gardenhires. The officers had received
a report of theft and discovered the very items described in
that report in the Gardenhires’ store. The Gardenhires
admitted to having a key to Ms. Della Sala’s store and to
having Ms. Della Sala’s flamingo dish at their house.
It is true, as the appellant notes, that in Criss v. City of
Kent, 867 F.2d 259 (6th Cir. 1988), this Court found that
officers in a similar situation did have probable cause to arrest
the suspect. In Criss, two police officers noticed, through the
No. 98-6434 Gardenhire, et al. v. Schubert 17
open windows of an apartment, City of Kent street signs
hanging on the walls of the plaintiff’s living room. The
officers went in and spoke with the plaintiff, who admitted
that he was a co-tenant of the house, and knew that the signs
were hanging in his residence, but stated that they belonged
to his roommate. The officers arrested him for receipt of
stolen property. In fact, the plaintiff’s roommate, alone, had
stolen the street signs. The plaintiff brought suit against the
officers, arguing that his innocence of the crime, combined
with the officers’ failure to investigate his involvement, meant
there was no probable cause to arrest him. The Court found
that the officers had probable cause to arrest the plaintiff. The
Court reasoned:
A suspect’s satisfactory explanation of suspicious
behavior is certainly a factor which law enforcement
officers are entitled to take into consideration in making
the determination whether probable cause to arrest exists.
A policeman, however is under no obligation to give any
credence to a suspect’s story nor should a plausible
explanation in any sense require the officer to forego
arrest pending further investigation if the facts as initially
discovered provide probable cause.
Id. at 262. “To hold otherwise,” the Court explained, “would
be to allow every suspect, guilty or innocent, to avoid arrest
simply by claiming ‘it wasn’t me.’” Id. The Criss decision
echoes the Supreme Court’s prior reasoning in Baker v.
McCollan, 443 U.S. 137 (1979), that “we do not think a
sheriff executing an arrest warrant is required by the
Constitution to investigate independently every claim of
innocence.” Id. at 145-56 (1979); see also Coogan v. City of
Wixom, 820 F.2d 170 (6th Cir. 1987) (“Where there are
sufficient facts to warrant a prudent person in a defendant’s
position to believe that a crime was committed and that the
person charged committed it, the failure to make a further
investigation does not negate probable cause”).
While instructive, however, the Criss case is not entirely
analogous to this one. Because the suspicious items were city

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